P L D 1967 Supreme Court 18 (PLP)

CORNELIUS, C. J.‑This appeal by special leave is brought by five persons, who stand convicted of the offence of murder and certain minor offences, viz. simple hurt and rioting. They are Nusrat, Akram, Aslam and Ahmad, who are brothers to each other and their maternal‑uncle Muhammd Bakhsh, Leave was granted to consider whether the plea of self‑defence which these persons had advanced at the trial had been properly examined, and whether the evidence could not sustain a plea of provocation, affecting the nature and quality of the offence that could be found against them. On examination of the record, we find that the, prosecution evidence itself establishes that provocation had been offered to these accused persons by those whom they had attacked, viz. by the latter having given a wanton beating to Noora, who is a cousin of Nusrat shortly before the later attack. The story is told in this fashion by Muhammad Bakhsh, the first eye‑witness, who is a neighbour of the deceased Ahmad's wife, Mst. Fateh Mai, P. W. 9, had developed illicit intimacy with Nusrat and two days before the murder on receiving a message through the aforesaid Noora, she agreed to elope with him and accordingly left her house at night in the company of Nusrat and his cousin Noora. They were, however, seen and Muhammad Bakhsh with Ghulam Qadir, P. W. 10 and others brought her back. The next day, her husband Ahmad returned to the village and was told what had happened, and the following morning Muhammad Bakhsh accompanied by Ahmad, Ghulam Qadir and Rana, P. W. 12 decided to take action. They, went to Noora s well. The plan shows that this well is about 440 karams away from Ahmad s well, towards the north. Finding Noora there, they taxed him with his behaviour, pointing out that Mst. Fateh Mai was married to his own maternal uncle. Ghulam Qadir demanded that on account of his behaviour Noora should vacate his land of which he was a tenant. Some hot words passed and the deceased Ahmad picked up a stick and gave a couple of blows to Noora. . These were by no means insignificant, for Noora sustained a lacerated wound two inches‑in length bone deep on his head and a five‑inch contusion on his left upper arm. The accused Ahmad . was present at this time and seeing what was happening, he slipped away and went to his own well.‑ This well is some 200 karams from the deceased Ahmad's well lying somewhat off the direct line between Ahmad's well and Noora's well. It is entirely conceivable that Ahmad accused reported to his brothers what treatment had been given to Noora by the deceased Ahmad and his companions. When the latter were returning to their well, they were attacked by a group composed of the five accused persona, who came running from their well armed with dangs and started to beat the deceased and his companions. The result was that the deceased Ahmad sustained two lacerated wounds on his head under which the skull was smashed so that he died. The witness Muhammad Bakhsh sustained seven , injuries, three being contusions on his back, and two being lacerated wounds on his head. Ghulam Qadir received 15 injuries, two being lacerated wounds on the head and the rest contusions mostly on the back. Rana received one lacerated wound on his right ear. Two of the accused persons Nusrat and Ahmad sustained slight injuries indicating that the party of the complainants was not wholly unarmed as they professed to be. It is significant however, that although Noora to the knowledge of the complainants bore injuries on his person, they did not join him as an accused person in their report of the occurrence, as they may well have done. On behalf of Nusrat and Ahmad accused the plea was put up that there was only one incident in which all the injuries on both sides were caused, namely the attack by the complainant party on these two persons and Noora, at Noora's well in an attempt forcibly to eject them from the land. Nusrat did not deny his association with Mst. Fateh Mai. In the Sessions Court, he said that she bad come to him of her own accord at his well on the night in question, and it was untrue that he or Noora had abducted her. Muhammad Bakhsh and Ghulam Qadir are the only witnesses of the story that Mst. Fateh Mai was caught by them in the company of Noora and Nusrat during the night. Msr. Fateh Mai's own story was that she was on the way from her place, namely, Ahmad's well to Nusrat's place, some 250 karams away in the company of Nusrat and Noora, when she was pursued and Nusrat and ran away, but she was caught. Of the two opposing versions, that put forward by Nusrat, namely, that Mst. Fateh Mai came to his well of her own accord and was on that view, the act of the complainants is applying force Noora does not appear to have been coveted with props justification. If they had beaten him, when, as they need the, saw him in the company of Mst. Fateh Mai, that would no dour: have been natural behaviour. But the beating was given on the 1st March 1963, two days later at a time when Noora had offer no offence to them. It could be said that they had taken upon themselves to judge him and to inflict punishment on the own authority and that was an act of high handedness which being accompanied by the infliction of serious injuries was of such a nature as to cause intense provocation to Noora's relations. The latter were by no means a weak body, and bearing in mine the character of the agricultural tribes of the Punjab, such conduce: would be calculated to cause loss of control to the extent that the persons affected would be driven to acts of violence by way o, retaliation. Between the injury to Noora and .the final attack the time that elapsed, bearing in mind the distances appearing from the plan; could not have been in excess of an hour, and may well have been within half an hour. That is not a sufficient period of time in which a passion of the kind described above could b; expected to cool down. Therefore, it appears plainly, that on the facts stated by the prosecution witnesses themselves, the plea of grave and sudden provocation could justifiably be raised on behalf of the accused persons. They instead took the plea of self‑defence, but regarding the case as a whole and 'bearing in mind the great ; disparity between the numerous and severe injuries received by the com plainants and the few and slight injuries sustained by Noora, Nusrat and Ahmad accused, and the fact that blood was found at two places, namely, at Noora's well and at the scene of the crime, some 200 karams away, it is clearly not possible to accept the version of Nusrat and Ahmad accused, that the encounter took place at Noora's well only. As has been said, Nusrat and Ahmad accused admitted their involvement in the encounter. The other three accused persons denied their presence and alleged that they had been falsely implicated. The danger of false implication in this case was excluded by the consideration that there being four persons in the party of the complainants, an attack of the present kind would not have been levied by less than that number and therefore it is reasonable to believe. the prosecution witnesses when they say that five persons attacked them. Details have been given of the various blows struck on each of the victims, which show that all five of the accused persons participated. The liability of each one is also placed beyond doubt by application of the principle of constructive liability of persons composing unlawful assemblies, of which this was plainly one. Therefore, the prosecution case that the five appellants joined to cause the injuries to the four members of the complainant party one of whom died in consequence is worthy of acceptance, but on the facts, it is necessary to allow to the accused persons in respect of the charge of homicide the benefit of grave and sudden provoca tion so that their offence would fall to be punished not under section 302, P. P. C., but under section 304, Part I, P. P. C. We allow this appeal to this extent, namely, that for the conviction under section 302/149, P. P. C., we substitute a conviction under section 304, Part I, read with section 149, P. P. C. and impose a sentence of 10 years' rigorous imprisonment on each of the appellants. The other convictions and sentences will remain unaltered. Sentences to run concurrently. A, H Order accordingly.